Joaquin Lugo v. Ralph Diaz

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — — 11 — JOAQUIN LUGO, Case No. 5:20-cv-02457-MCS-SHK — 12 — Plaintiff, 13 ORDER DISMISSING CASE v. WITHOUT PREJUDICE FOR 14 FAILURE TO COMPLY WITH RALPH DIAZ, et al., COURT ORDERS — 15 — Defendants. — 16 — — 17 — 18 For the following reasons, the case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On November 2, 2020, Plaintiff Joaquin Lugo (“Plaintiff”), proceeding pro 21 se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983 alleging 22 various violations of his constitutional rights (“Complaint”). Electronic Case 23 Filing Number (“ECF No.”) 1, Compl. Upon screening the Complaint, under 28 24 U.S.C. § 1915 , on February 8, 2021, the Court issued an Order Dismissing Most 25 Of The Claims In The Complaint With Leave To Amend (“ODLA”). ECF No. 13, 26 ODLA at 27. In the ODLA, the Court notified Plaintiff that Plaintiff had 21 days 27 from the date the ODLA was issued to file a First Amended Complaint (“FAC”), 1 failed to timely file a FAC, “this action [would] be dismissed with or without 2 prejudice for failure to state a claim, failure to prosecute, and/or failure to 3 obey Court orders under Federal Rule of Civil Procedure 41(b).” Id. 4 (emphasis in original). 5 On March 2, 2021, the Court received Plaintiff’s Objections to Non6 Dispositive Order of Magistrate Judge (“Objections” of “Objs.”), which appeared 7 to be an objection to the ODLA. ECF No. 15, Objs. After reviewing Plaintiff’s 8 Objections, however, the Court concluded that its ODLA was appropriate though it 9 was unclear how Plaintiff wanted to proceed. Therefore, the Court issued a minute 10 order (“Order”) requiring Plaintiff, by June 7, 2021, to either: “(1) file a[] FAC that 11 includes all claims that Plaintiff would like to pursue, even if Plaintiff previously 12 stated them in the original Complaint, including claims which the Court did not 13 find deficient; or (2) clearly indicate to the Court, in writing, that Plaintiff intends 14 to proceed with the entire current Complaint, as is.” ECF No. 18, Order at 2 15 (emphasis in original). Plaintiff was warned that: 16 if Plaintiff does not timely file an FAC or clearly notify the Court 17 on whether Plaintiff chooses to proceed on his originally filed 18 Complaint, the Court will recommend that this action be dismissed 19 with or without prejudice for failure to state a claim, failure to 20 prosecute, and/or failure to obey Court orders under Federal Rule 21 of Civil Procedure 41(b). — 22 — Id. (emphasis in original). 23 Plaintiff failed to timely respond to the Court’s ODLA or Order. 24 Consequently, on September 10, 2021 Plaintiff was ordered to show cause 25 (“OSC”) by September 23, 2021, why this case should not be dismissed for failure 26 to prosecute or follow Court orders. ECF No. 19, OSC. Plaintiff was instructed 27 that Plaintiff could comply with the OSC by either: (1) filing a FAC that includes 1 them in the original Complaint, including claims which the Court did not find 2 deficient; or (2) clearly indicate to the Court, in writing, that Plaintiff intends to 3 proceed with the entire current Complaint, as is. Id. at 2 . Plaintiff was also 4 warned again, and for the final time, that if Plaintiff does not timely 5 file an FAC or clearly notify the Court on whether Plaintiff chooses 6 to proceed on his originally filed Complaint, the Court will 7 recommend that this action be dismissed with or without prejudice 8 for failure to state a claim, failure to prosecute, and/or failure to 9 obey Court orders under Federal Rule of Civil Procedure 41(b). — 10 — Id. (emphasis in original). 11 On September 28, 2021, the Court’s OSC was returned (“OSC Return”) as 12 undeliverable because Plaintiff was paroled. ECF No. 20, OSC Returned. Plaintiff 13 has not updated the Court with his new address, responded to the OSC, or filed any 14 other correspondence with the Court since Objections to the ODLA on March 2, 15 2021. 16 II. LEGAL STANDARD 17 District courts have sua sponte authority to dismiss actions for failure to 18 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 19 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. 20 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an 21 action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 22 failure to prosecute or comply with the Federal Rules of Civil Procedure or the 23 court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering 24 dismissal for failure to comply with court orders). 25 Further, L.R. 41-6 requires a pro se litigant to keep the Court and opposing 26 parties apprised of the party’s current address, telephone number, if any, and e27 mail address, if any. If mail directed by the Clerk to a pro se plaintiff’s address of 1 the service date, such plaintiff fails to notify, in writing, the Court and opposing 2 parties of the plaintiff’s current address, the Court may dismiss the action with or 3 without prejudice for want of prosecution. L.R. 41-6. 4 In deciding whether to dismiss for failure to prosecute or comply with court 5 orders, a district court must consider five factors: “(1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; 7 (3) the risk of prejudice to the defendants; (4) the public policy favoring 8 disposition of cases on their merits; and (5) the availability of less drastic 9 sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (setting out similar five 11 factors as in Henderson). “Dismissal is appropriate ‘where at least four factors 12 support dismissal, or where at least three factors ‘strongly’ support dismissal.’” 13 Neal v. Reslan, No. CV 19-09291 PA (ASx), 2020 WL 754366 , at *1 (C.D. Cal. 14 Jan. 16, 2020) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 15 1998) (internal citations omitted) (citing Ferdik, 963 F.2d at 1263 )). In a case 16 involving sua sponte dismissal, however, the fifth Henderson factor regarding the 17 availability of less drastic sanctions warrants special focus. Hernandez, 138 F.3d 18 at 399 . 19 III. DISCUSSION 20 Here, the first two factors—public interest in expeditious resolution of 21 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 22 Despite repeated warnings that the case will be dismissed for failure to prosecute, 23 Plaintiff has failed to respond to multiple Court orders, failed to keep the Court 24 apprised of Plaintiff’s address, and has failed to file a FAC. This failure to 25 prosecute and follow Court orders hinders the Court’s ability to move this case 26 toward disposition and suggests that Plaintiff does not intend to litigate this action 27 diligently. 1 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 2 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 3 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447 , 1452-53 4 (9th Cir. 1994) (citations omitted). Here, Plaintiff has not offered any excuse for 5 his failure to comply with the Court’s orders and with local rules and respond in a 6 timely manner, and this “prejudice” element thus favors dismissal. 7 The fourth factor—public policy in favor of deciding cases on the merits— 8 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 9 move litigation towards disposition at a reasonable pace and to avoid dilatory and 10 evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 11 Plaintiff has not met this responsibility despite having been: (1) instructed on his 12 responsibilities; (2) granted sufficient time in which to discharge them; and 13 (3) repeatedly warned of the consequences of failure to do so. Under these 14 circumstances, though this policy favors Plaintiff, it does not outweigh Plaintiff’s 15 repeated failure to obey Court orders or to file responsive documents within the 16 time granted. 17 The fifth factor—availability of less drastic sanctions—also weighs in favor 18 of dismissal. The Court cannot move the case toward disposition without 19 Plaintiff’s compliance with Court orders or participation in this litigation. Despite 20 the Court’s repeated attempts to obtain a response, Plaintiff has shown he is either 21 unwilling or unable to comply with Court orders by failing to file responsive 22 documents and failing to otherwise cooperate in prosecuting this action. The Court 23 is also unable to communicate with Plaintiff because Plaintiff has not provided the 24 Court with Plaintiff’s current address. Thus, the Court is not aware of any lesser 25 sanction that is available in this case. See Henderson, 779 F.2d at 1424 (“The 26 district court need not exhaust every sanction short of dismissal before finally 27 dismissing a case but must explore possible and meaningful alternatives.”) (citation 1 | omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120 , at *1 2 | (C.D. Cal. Nov. 18, 2019). 3 Accordingly, because it appears that Plaintiff has abandoned this litigation, 4 | and because Plaintiff has repeatedly ignored this Court’s orders and failed to 5 | follow local rules, the Court DISMISSES this case, without prejudice. 6 IV. CONCLUSION 7 For the reasons discussed above, IT IS HEREBY ORDERED that the case 8 | 1s DISMISSED without prejudice. — 9 — 10 byl L bears Dated: October 12, 2021 HONORABLE MARKCOSCARSI United States District Judge — 13 — 14 | Presented by: — 15 — 16 Wes 17 | HONORABLE SHASHI H. KEWALRAMANI 18 United States Magistrate Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —